Question: Social Security approved me for disability benefits due to arthritis and spinal stenosis. I receive a meager amount per month, but I have been able to work a few hours a month to supplement the SSDI. Now my back has gotten worse and I can’t work at all. Can I get my monthly benefit amount increased?
Answer: Unlike other benefits programs like veterans disability compensation and workers’ compensation, the amount of Social Security disability you’re paid doesn’t depend on how disabled you are, or how much your illness or injury limits you. Your monthly Social Security disability benefit is based on your earnings record (or your spouse’s earnings record, if you qualify for disability based on your spouse’s work). Your disability amount is the same amount of what your retirement benefit would be if you retire at full retirement age. Nor is your SSDI amount dependent on your income or your assets. You can be wealthy and still receive your full Social Security disability benefit.
If you receive SSI, it’s also not tied to the extent of your disability, but it is affected by the amount of your income. SSI is based on a set federal amount, but it’s reduced by the part of your income that’s countable. (Social Security doesn’t count the first $85 of your wages or one-half of the remaining income that you earn every month.) So if you stop working the few hours you’ve been working, your monthly SSI payment should go up.
Question: I was approved for SSDI because of multiple sclerosis almost two years ago. I should become eligible for Medicare in early 2014. Is Medicare free for disability recipients, or will I have to pay premiums? If so, how much?
Answer: You are eligible for Medicare two years after your entitlement date for Social Security Disability Insurance (this is the date your backpay was paid from). Medicare isn’t free for most disability recipients though. There are premiums, deductibles, and copays for most parts of Medicare, and the costs go up every year. Here are the new figures for 2014, and how you can get help paying the costs.
Part A Costs
You will have to pay a premium for Medicare Part A (hospital insurance) if you aren’t fully insured under Social Security. Generally being fully insured means having worked 40 quarters (the equivalent of 10 years) in a job paying FICA taxes. Many disability recipients aren’t fully insured because they became unable to work before getting enough work credits. If you (or your spouse) don’t have enough work credits, you’ll pay a premium of $426 per month, or if you (or your spouse) has between 30 and 39 credits, you’ll pay a premium of $215. (The premiums actually went down in 2014.)
If you need hospital or skilled nursing care, you’ll have to pay the first $1,216 in costs (your deductible) before Medicare will start paying anything. Once you’ve satisfied the deductible, the first 60 days in the hospital (or 20 days in skilled nursing care) are free. If you still need inpatient care after that, you will be responsible for the following copays.
- Hospital days 61-90: $304 per day
- Hospital days 91 and beyond: $608 per day, and
- Skilled nursing days 21-100: $152 per day.
Medicare can be quite expensive for those on disability who aren’t fully insured, but if you are eligible to be a Qualified Medicare Beneficiary (QMB) because of low-income, a Medicare Savings Program will pay your Part A premium, and possibly other costs as well.
Part B Costs
Most people pay a Part B premium of $104.90 each month. However, if your adjusted gross income is over $85,000 (or $170,000 for a couple), the monthly premium can be over $200. The Part B deductible for 2014 is $147 per year.
Again, if you have low income, there are various programs that can pay your Part B premium and deductible, called Medicare Savings Programs.
Part D Costs
Part D premiums vary depending on the plan you choose. The Part D deductible for 2014 is $310 per year (though some plans waive the deductible).
There are subsidies available to pay for Part D for those with low income (called Extra Help). See Nolo’s article on Extra Help for Part D for when you are eligible.
As for the “donut hole,” when Part D helps you less, in 2014 the donut hole begins after you’ve spent $2,850 on prescription drugs and ends when you’ve spent $4,550. However, in 2014, while you are in the donut hole, brand-name drugs must be sold to you at a 52.5% discount and generic drugs at a 28% discount.
For more details on the 2014 costs of Medicare and Medigap plans, see Nolo’s article on Medicare premiums, deductibles, and copays in 2014.
Yesterday Social Security announced that there would be a 1.5% increase in Social Security and SSI benefits for 2014. This is smaller than most retirees and disabled recipients would have liked, but remember that in 2010 and 2011, there was no increase.
Along with this increase in benefits, many important Social Security limits and Medicare fees will change on January 1, 2014.
The average Social Security retirement and disability benefit is expected to increase to $1,294, the average disability benefit to $1,148, and the average surviving spouse benefit to $1,243. The most Social Security benefits a retiree can collect in 2014 will be $2,642 per month.
If you continue to work while collecting early Social Security retirement benefits, your benefits will be reduced by $1 for every $2 you make over $1,290 per month. But if you will turn 66 during 2014, you can make up to $3,450 per month before your benefits are reduced (there is no limit once you turn 66).
The maximum amount of your income that is subject to the Social Security tax to fund Social Security retirement, survivors, and dependents benefits, as well as Social Security disability insurance, is $117,000 in 2014. There is no limit to the amount of income subject to the Medicare tax.
As to SSI, the new federal SSI benefit rate is $721 per month for an individual and $1,082 per month for a couple. The SSI payment amounts are higher in states that pay a supplementary SSI payment. Although some states have higher limits, in states with=out a supplementary payment, if you have income between $721 and $1,527, your SSI payment will be reduced, and over $1,527, your SSI will be terminated.
As far as determining your initial eligibility for disability purposes, in 2014 you must be making less than $1,070 per month to qualify for benefits, or $1,800 if you are blind. If you receive SSDI and are trying to go back to work, if you make more than $770 per month, it will count as one of your nine trial work months.
Question: My employer’s insurance company approved me for short-term disability benefits and I was hoping to get long-term disability benefits when the short-term benefits ran out. But in the mean time my employer laid me off and terminated my disability insurance. Is this legal? Does this mean the insurance company can deny me LTD benefits?
Answer: As long as you were covered by long-term disability (LTD) insurance at the time you became unable to work, you may file for short- or long-term disability benefits, regardless of whether you’re still on your employer’s payroll. The decisive question is whether you were insured on your disability onset date, not whether you’re insured on the date you file your claim.
Think of it this way: If John has a car insurance policy that expires on August 31, he will be covered for damage to his car from a hailstorm that occurred on August 30, even if he’s been on vacation and doesn’t file his claim until September 3, after his policy has expired. Disability insurance works the same way.
Ask your employer for a copy of your LTD plan, which will state the eligibility requirements for both short-term disability and long-term disability coverage. Generally the requirements are the same for both policies. For instance, if the short-term disability plan requires you to work full-time (at least 35 hours per week) to be eligible for benefits, the long-term plan should as well. Make sure that you were working the required number of hours as of the date you filed your short-term disability claim. If you were, you should be eligible for long-term disability benefits as well.
Whether your employer can legally discharge you while you’re on short-term disability is a separate question. It’s important to remember that disability insurance is meant to provide income protection if you become unable to work. It does not offer any measure of job security. Your employer is under no obligation to continue employing you simply because you’re receiving disability benefits. However, there are federal laws that may impact whether your employer can legally fire you, particularly the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
Job Protection Under the Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) allows certain workers to take up to 12 weeks of unpaid, job-protected leave per year to deal with personal or family medical issues. FMLA leave, which often runs concurrently with the receipt of short-term disability benefits, can be used to recuperate from your own illness or injury. While you can’t legally be discharged for as long as you’re on FMLA leave, exceeding twelve weeks of leave, even by a day, leaves you open to termination.
For FMLA to apply, the following two conditions must be met:
- The business must employ at least 50 individuals working within 75 miles of each other, and
- The employee must have worked for the employer for at least twelve months, and for 1,250 hours or more over the previous year.
If you wish to take FMLA leave, you should inform your employer as soon as possible that your requested time off is related to a family or personal medical situation. When you return from unpaid leave, your employer must give you back your old position or one that is substantially similar, assuming you can still perform the essential duties of the job.
Even if you’re not entitled to unpaid leave under the FMLA, you may be protected by state laws that extend FMLA-like benefits to employees of small and medium-sized companies. Check with your human resources department, your state’s department of labor, or an employment law attorney to learn more about the job protection laws in your state.
Employment Protection Under the Americans with Disabilities Act
The Americans with Disabilities Act (ADA) requires employers with 15 or more workers to make reasonable accommodations for employees with disabilities. The ADA defines a disability as a physical or mental impairment that “substantially limits a major life activity.”
Under the ADA, an employer must interact with the employee to design accommodations that might allow the disabled employee to continue working. For example, the employer could offer a more flexible schedule, additional unpaid leave, wheelchair ramps, ergonomic furniture, or some other accommodation that might allow the disabled employee to continue to perform the essential duties of the position. The employer need not offer accommodations that would cause the business “undue hardship.” Generally, courts have found that larger companies are better able to absorb the costs of accommodations than small businesses.
If an employer has attempted to make various reasonable accommodations and the individual is still not able to perform the essential duties of the job (or if no reasonable accommodations exist that would allow the individual to work), the ADA does not prevent the employer from firing the disabled employee.
For more information on how the FMLA and ADA interact to provide you with job protection, see Nolo’s article on whether you can get fired while on disability leave.
Wrongful Termination and Denial of Benefits
If you’ve been discharged from a job while on disability leave and you think you should have been protected under the FMLA or ADA, you may want to contact an employment or disability law attorney to discuss your options. You may be entitled to money damages or reinstatement if your employer hasn’t complied with the FMLA, the ADA, or applicable state laws.
Regardless of whether you were wrongfully terminated, however, you should be eligible for long-term disability benefits even though you were let go before your short-term disability benefits ran out. If your employer or its insurance company tries to deny you these benefits, contact an LTD lawyer.
By: Aaron Hotfelder, guest blogger and disability lawyer
Question: I’m turning 62 this year and I’m considering claiming my retirement benefits early, since I was just denied disability benefits. If I do, will this lower my wife’s benefits too?
Answer: As you know, claiming Social Security before your full retirement age, which is currently 66, will lower your benefits permanently. Social Security reduces your benefits using the early retirement penalty so that you’ll receive the same amount between now and age 75 whether you claim at age 66 and get the standard amount, age 62 and get a smaller amount, or 70 and get an increased amount. That said, if you claim benefits early but you live past a certain age—called your “breakeven point”—you will wind up collecting less in total lifetime benefits than if you had waited to claim them at full retirement age.
Now, to answer your question: If you claim your Social Security retirement benefits early, this will not affect your wife’s dependents benefits, which are also called spousal retirement benefits. As long as your wife waits until her full retirement age to claim her spousal benefits, she can collect the full amount. Because dependents benefits are based on your primary insurance amount (which is based on your earnings record at your full retirement age), whether or not you claim benefits early doesn’t affect the amount of dependents benefits your spouse can collect.
Spousal retirement benefits are half of your primary insurance amount – that is, half of what you would have received if you had waited until full retirement age to claim benefits. However, if your wife claims the spousal retirement benefit before her full retirement age, her spousal benefits will be lowered permanently.
Survivors benefits are handled differently. If you claim retirement benefits early, this will lower your wife’s survivors benefits (also called the “widow’s benefit” or “deceased husband’s benefit), should you die before her. This is because at your death, your wife will be able to collect the same amount you were entitled to before you died. If your retirement benefit was lowered because of early retirement deductions, or increased because of delayed retirement (up until age 70), your wife’s survivors benefit will be similarly increased or decreased.
Also, if your wife were to collect the survivors’ benefit before she reached full retirement age (anytime from 60 to 65), her survivors’ benefit would be decreased. So if you collected retirement benefits early and then your wife collected her survivors benefits early, she would only get a small portion of your full retirement age benefit. (There is an exception here if your wife is caring for your dependent minor or disabled children: in this situation, she would not get an early retirement penalty regardless of the age she claimed this “mother’s benefit.”)
There are different strategies that couples can use to maximize their benefits, including “claiming and suspending” and collecting dependents benefits from each of your earnings records. To find out more, see Nolo’s article on how couples can maximize their Social Security benefits.
Question: I’ve been on and off work for a few months due to degenerative disc disease and arthritis. I’ve finally accepted that my back pain has become so disabling that I’m not going to be able to hold down a job. When should I file for Social Security disability benefits? Do I need to be off work for six months first?
Answer: There is no amount of time you have to be off work before you apply for disability benefits. Generally, once you have stopped working and you have a physical or mental impairment that prevents you from making at last $1,040 per month, you can be eligible for disability benefits. Because the disability application process can take a year or two, if you feel you are disabled, you should generally file for disability as soon as possible. There are only a few reasons to delay applying for Social Security disability: if you are still working, if you are collecting unemployment, or if you haven’t yet seen a doctor for your problems. Let’s look at these situations more closely.
Working. If you are working part-time, or have been working on and off, this may indicate to Social Security that you’re able to do work activities. To Social Security, if you can earn $1,040 per month, you are not disabled. If you’re not working now, you should be okay to apply for disability, using your last day of work as the onset date of your disability. (You might even be able to use an earlier onset date if your sporadic attempts at work weren’t working out because of your disability – see our article on unsuccessful work attempts for more information.)
Unemployment. If you’re receiving unemployment compensation, it might cause a problem with getting an approval for disability. To receive unemployment benefits, you generally have to certify you are “willing and able to work.” While there are circumstances where it’s okay to collect both benefits at once, it’s generally safer to not be collecting unemployment benefits when you apply. For some more guidance on this, see my June 2013 blog post on applying for disability benefits while collecting unemployment benefits.
Not under a doctor’s treatment. If you haven’t been seeing a doctor regularly for your impairment, this could be a problem. Social Security needs to see medical records such as doctor’s notes, lab test, x-rays, and so on. And Social Security is less likely to take your problems seriously if you haven’t seen a doctor for them. If you haven’t been able to afford to go to a doctor, Social Security may send you on a consultative exam with a Social Security doctor, but unless your impairment is clear-cut and very severe, you are unlikely to be approved for benefits on the basis of a consultative exam. It’s better to make an appointment to see a doctor (maybe try a free clinic) to develop evidence of your impairment.
If you plan to delay filing for disability for a month or two until you’ve either seen a doctor, run out of unemployment benefits, or stopped working, you can get what’s called a “protective filing date.” You simply let Social Security know that you’ll be filing a disability application in the next few months, either over the phone or by sending the agency a letter. The date that you let Social Security know that you intended to file becomes like your application date, as long as you file for disability within six months of that date. This can be important for calculating your disability backpay and a few other reasons. For more information, see our article on protective filing dates for Social Security.
Question: I read your last post on getting Medicare before you’re 65 and it talked about being currently insured. If my husband is currently insured (he worked for a while a couple of years ago), does that mean I can get Social Security benefits when he dies? He is in poor health and I don’t think he’s fully insured, because he can’t get Social Security retirement benefits.
Answer: There are very limited Social Security benefits for those who are currently insured or for the spouses of those who are currently insured. For most Social Security benefits, such as retirement benefits, you need to be “fully insured,” which generally means you have 40 work credits, or 10 years worth of work. For disability benefits, you need to be “insured for disability benefits,” which means you need at least one work credit for each year that has passed since you turned 21 (plus you need to have worked a certain amount in recent years).
To be currently insured, on the other hand, an individual needs to have earned only six credits in the three years before he or she became eligible for disability benefits or passed away. A credit is earned by making $1,160, and an individual can earn up to four credits per year. (A person can earn six credits in as little as 13 months if he or she makes a total of at least $6,960. )
However, the only time currently insured individuals can benefit from this insured status during their lifetime is if they have end-state renal disease (ESRD). In that case, they can get Medicare Part A, premium free, while being currently insured instead of fully insured.
While someone who is just currently insured is not eligible for Social Security retirement benefits or disability benefits, after the currently insured individual dies, his spouse and children may be eligible for survivors benefits. The following survivors benefits are available to the dependents of someone who was currently insured:
Child’s insurance benefits, for children who are unmarried and either:
- under 18
- between 18 and 19 and in school, or
- disabled, with a disability that began before age 22.
Mother’s or father’s benefits, for surviving spouses who care for a child of the deceased spouse. The child being cared for must receive survivors benefits based on your spouse’s record and either be:
- under 16, or
A surviving child or a surviving spouse who has a surviving child in his or her care will receive 75% of what the deceased individual’s Social Security payment would have been, up to a family maximum. (If there is more than one child, each family member would get less than 75%.) Keep in mind that if the deceased individual wasn’t fully insured, the survivors benefit payment may be quite low. Also, as an aside, you should know that a currently insured individual’s spouse or children are not eligible for dependents benefits during the individual’s lifetime.
For more information, see our article on currently insured status for Social Security disability.
Question: I was just denied Social Security disability benefits because I didn’t have enough work credits. I was mainly applying to qualify early for Medicare (I’m 60), because I have high medical costs due to kidney problems and other conditions. Now I’m worried I won’t qualify for Medicare even when I turn 65. What can I do?
Answer: You have some options. There are several parts to Medicare, with different rules for qualifying for each. Part A, Hospital Insurance, is the Medicare coverage that’s premium-free for those who are fully insured with Social Security. Individuals over 65 who aren’t insured with Social Security can pay a premium to get Part A. Anyone over 65 can also get Part B, Medical Insurance (mainly for doctors’ visits), simply by paying a premium.
Here are the various ways to qualify for Medicare.
Premium-free Medicare for those age 65 or older. If you are 65 or older and you OR your spouse worked for long enough in a job covered by Social Security, for a railroad, or for a federal, state, or local government in a Medicare-covered job, you qualify for free Medicare Part A. Generally you need 40 work credits (each representing one calendar quarter of work) to be fully insured by Social Security. That represents about ten years’ worth of work.
To qualify based on your spouse’s work record (or your ex-spouse’s work record), your spouse must be at least 62. Do you have a spouse who will have enough work credits by the time you turn 65? Check with Social Security to see if your spouse (or ex-spouse) will have enough credits.
Paid-premium Medicare for those over 65 and older. Those over 65 who don’t qualify through one of the above methods can get Part A or Part B by paying a premium. Note though, if you want to get Part A by paying a premium, you also have to pay for Part B. On the other hand, you can just get Part B if you want, by paying the Part B premium. Also, anyone who is entitled to Medicare Part A or enrolled in Part B can get Part D prescription drug coverage by paying a monthly premium.
How much are you looking at having to pay for Part A if you’re not fully insured for Social Security? If you, or your spouse, has 30 to 39 work credits (instead of the 40 required to be fully insured by Social Security), the monthly premium for Part A is currently $225 per month. If not, the monthly premium would be $441 per month (in 2013 numbers). If you have income below a certain level, however, you can get help paying your premiums through one of the Medicare Savings Programs.
Those younger than 65. Unfortunately, there are limited ways to get Medicare if you’re under 65. You can qualify for Medicare if you are approved for disability benefits from Social Security or the Railroad Retirement Board. However, there is a 24-month waiting period after you become entitled to disability benefits before you can get Medicare. You can also get Medicare coverage if you have end-state kidney/renal disease (ESRD). (For ESRD, you or your spouse need only be “currently insured” with Social Security. If you or your spouse earned six credits in the three years before turning before turning 65 or dying, you are currently insured.)
If your income and assets aren’t too high (and you may not need to count money you spend on your medical expenses), you might want to look into applying for Medicaid, especially if your state has opted for Medicaid expansion. Or, check out the new health care marketplaces.
Ways to get more credits. If you are close to the amount of credits you need (at age 60, you need 38 credits to qualify for disability benefits; at age 62 or older, you need 40 credits to qualify for disability or retirement benefits), you might consider going back to work on a very part-time basis. You need to earn only $1,160 to get one credit, and you can earn four credits per year. Getting to 40 credits (or 30, even), can save you thousands of dollars in Medicare Part A costs over the years. Or, if your spouse is close to being fully insured for Social Security, he or she might be able to earn a few more work credits.
Lastly, you can always appeal a Social Security denial. If you can get approved for disability benefits, you’ll automatically be eligible for Medicare two years later or when you turn 65, whichever is earlier.
Question: My degenerative disc problems and stenosis became so bad that I was forced to quit my job as a vocational nurse—I could no longer be on my feet all day or physically assist heavier patients. I had been working three 12-hour days per week for the past ten years. I am 49. Can Social Security say that I can work fewer hours and deny me benefits?
Answer: Applicants for Social Security disability should be able to get benefits if they can’t work on a “regular and sustained basis.” Generally, this means full time; for Social Security to deny you benefits, you need to be able to work 40 hours per week without needing to take frequent breaks. In most cases, Social Security won’t deny you benefits because you could work, say, 15 or 20 hours per week.
The rule is a bit different if you worked part-time in the years before you quit due to your impairments. In that case, if Social Security says that you can still do your past part-time job, you can’t get benefits, even if Social Security would agree you couldn’t work a 40-hour week. So in your case, if Social Security decides you can work 36 hours per week, you’ll be denied benefits even if you clearly couldn’t work 40 hours per week. (To learn more about this issue, see our article on disability benefits and full-time work vs. past-time work.)
What if Social Security agrees you can’t work your past job that required three 12-hour shifts per week? (By the way, this probably won’t be difficult to prove — that schedule would be physically grueling for most people; nearly impossible for someone with your physical impairments.) But before approving you for disability benefits, Social Security would look to see whether there are other jobs you could with easier schedules (for instance, five 7-hour days) – or other 36-hours-a-week jobs that require less physical work and more sitting down. Whether Social Security would find that there are other jobs you could do depends on what your residual functional capacity (RFC) is.
One more issue—because you’re not yet 50, Social Security will assume there are other types of jobs that someone your age can learn to do (unless you were given a “less-than-sedentary” RFC, which is not common). For example, say you can’t find a nursing job with lighter duties or a less taxing schedule, Social Security will argue that there are many sit-down jobs you can do.
But once you turn 50, this changes. Then Social Security will use the “grids” to decide whether you should be expected to learn a new line of work. First, Social Security will assess whether you have skills you can transfer to another type of job. If not, Social Security may not expect you to be able to “adjust” to new work, depending whether Social Security gave you an RFC for sedentary work or light work. For more information on this issue, see our article on the disability grids.